EX-10.16






Exhibit 10.16




SECURITIES PURCHASE AGREEMENT




          THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made as of February 23, 2006,
by and among Astoria Generating Company Holdings, L.L.C., a Delaware limited liability company (the
“Company”) and each of the individuals and entities listed on Schedule of Investors
attached hereto (collectively referred to herein as the “Investors” and individually as
“Investor”).




          WHEREAS, the Investors desire to purchase, and the Company desires to issue and sell on the
date hereof, an aggregate of 31,440,000 Series A Voting Common Units (“Series A Units”) of
the Company (the “Series A Units”) on the terms and subject to the conditions contained in
this Agreement.




          WHEREAS, on the date hereof, the Company is issuing to certain Investors an aggregate of 953
Series B Nonvoting Common Units of the Company (“Series B Units” and together with the
Series A Units, the “Investor Securities”) on the terms and subject to the conditions
contained in this Agreement.




          NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:




          1. Purchase and Sale of the Investor Securities.




          (a) Upon execution of this Agreement, each Investor will purchase, and the
Company will issue and sell the number of Series A Units, at a price of $10.00 per Series A
Unit, set forth beside such Investor’s name on Schedule of Investors attached hereto and
each Investor will deliver to the Company a cashier’s or certified check or wire transfer of funds in the
amount set forth beside such Investor’s name on Schedule of Investors attached hereto. The
Company will issue the number of Series B Units to certain Investors as set forth beside such
Investor’s name on the Schedule of Investors attached hereto.




          (b) In
connection with the purchase and sale of Investor Securities hereunder, each Investor represents and warrants to the Company as to itself that:





          (i) The Investor Securities to be acquired by the Investor pursuant to this Agreement
will be acquired for the Investor’s own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act of 1933, as amended from time to
time (the “Securities Act”), or any applicable state securities laws, and the
Investor Securities will not be disposed of in contravention of the Securities Act or any
applicable state securities laws.




          (ii) The Investor is sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Investor Securities.




          (iii) The Investor is able to bear the economic risk of his or its investment in the
Investor Securities for an indefinite period of time because the Investor



 









 




Securities have not been registered under the Securities Act and, therefore, cannot be sold
unless subsequently registered under the Securities Act or an exemption from such
registration is available.





          (iv) The Investor has had an opportunity to ask questions and receive answers
concerning the terms and conditions of the offering of the Investor Securities and has had
full access to such other information concerning the Company as he or it has requested.




          (v) Such Investor is an “Accredited Investor” as defined in Regulation D under the
Securities Act and such Investor considers himself or itself to be an experienced and
sophisticated investor and to have such knowledge and experience in financial and business
matters as are necessary to evaluate the merits and risks of an investment in the Investor
Securities. Such Investor acknowledges and understands that an investment in the Investor
Securities involves substantial risks and such Investor is able to bear the economic risks
of an investment in the Investor Securities pursuant to the terms hereof, including the
complete loss of such Investor’s investment in the Investor Securities.




          (vi) This Agreement constitutes the legal, valid and binding obligation of the
Investor, enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by the Investor does not and will not conflict with, violate
or cause a breach of any agreement, contract or instrument to which the Investor is a party
or any judgment, order or decree to which the Investor is subject.



          (c) Each Investor acknowledges and agrees that on the date hereof, each Investor shall
execute and agree to be bound by the Company’s Amended and Restated Operating Agreement (the
“LLC Agreement”), dated as of the date hereof by and among the Company and the Investors.




          2. Restrictions on Transfer of the Investor Securities. The Investor Securities
are also subject to the restrictions on transfer set forth in the LLC Agreement (as in effect
from time to time), and nothing herein shall be interpreted to limit the restrictions on transfer
set forth therein.




          3. General Provisions.




          (a) Transfers in Violation of Agreement. Any transfer or attempted transfer
of any Investor Securities in violation of any provision of this Agreement shall be void, and the
Company shall not record such transfer on its books or treat any purported transferee of such
Investor Securities as the owner of such Investor Securities for any purpose.




          (b) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,




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construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.




          (c) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.




          (d) Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together constitute one and
the same agreement.




          (e) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each Investor, the
Company and their respective successors and assigns (including subsequent holders of Investor
Securities); provided that the rights and obligations of each Investor under this Agreement
shall not be assignable except in connection with a permitted transfer of the Investor Securities
hereunder.




          (f) Choice of Law. The corporate law of the State of Delaware will govern
all questions concerning the relative rights of the Company and its investors. All other
questions concerning the construction, validity and interpretation of this Agreement and the exhibits
and schedules hereto will be governed by and construed in accordance with the internal laws of the
State of Delaware, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Delaware.




          (g) Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages and costs (including
attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all
other
rights existing in its favor. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and that any
party
may in its sole discretion apply to any court of law or equity of competent jurisdiction
(without
posting any bond or deposit) for specific performance and/or other injunctive relief in order
to
enforce or prevent any violations of the provisions of this Agreement.




          (h) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the Company and the holders of a majority of the Series A
Units issued hereunder.




          (i) Business Days. If any time period for giving notice or taking action hereunder
expires on a day which is a Saturday, Sunday or holiday in the state in which the Company’s chief
executive office is located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.




* * * * *





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          IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement on
the date first written above.



	 	 	 	 	 
	 	 	ASTORIA GENERATING COMPANY
 HOLDINGS, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jane Warren
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Its:	 	 
	 
	 	 	 	 
	 	 	THE INVESTORS:
	 
	 	 	 	 
	 	 	MADISON DEARBORN CAPITAL
 PARTNERS IV, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Madison Dearborn Partners IV, L.P.
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 
	 

	 	By:
	 	Madison Dearborn Partners, LLC
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Patrick C. Eeley
	 

	 	 	 	 
	 

	 	Its:
	 	Authorized Signatory
	 
	 	 	 	 
	 	 	HUNT GENERATION INVESTMENTS
 & TRANSMISSION SERVICES, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	HGITS GP, L.L.C.
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Keith Ball
	 

	 	 	 	 
	 

	 	Its:
	 	Authorized Signatory
	 
	 	 	 	 
	 	 	/s/ Stanley Shuman
	 	 	 
	 	 	STANLEY SHUMAN




















 





	 	 	 	 	 
	 	 	JACOB WORENKLEIN & CINDY
WORENKLEIN AS TENANTS BY THE
ENTIRETY
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jacob Worenklein
	 

	 	 	 	 
	 

	 	 	 	Jacob Worenklein
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cindy Worenklein
	 

	 	 	 	 
	 

	 	 	 	Cindy Worenklein
	 
	 	 	 	 
	 	 	/s/ Jacob Worenklein
	 	 	 
	 	 	JACOB WORENKLEIN
	 
	 	 	 	 
	 	 	/s/ Jeff Hunter
	 	 	 
	 	 	JEFF HUNTER
	 
	 	 	 	 
	 	 	/s/ Mark Sudbey
	 	 	 
	 	 	MARK SUDBEY
	 
	 	 	 	 
	 	 	/s/ Ian Nutt
	 	 	 
	 	 	IAN NUTT
	 
	 	 	 	 
	 	 	/s/ Craig Hart
	 	 	 
	 	 	CRAIG HART
	 
	 	 	 	 
	 	 	/s/ Adam Allen
	 	 	 
	 	 	ADAM ALLEN






 









 





Schedule of Investors




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Series B
	 	 	 	 	 	 	Series A Voting	 	Nonvoting
	Name and Address	 	Purchase Price	 	Common Units	 	Common Units
	Madison Dearborn Capital Partners IV, L.P.

Three First National Plaza

Suite 3800

Chicago, Illinois 60602

	 	$	282,845,000	 	 	 	28,284,500	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Hunt Generation Investments & Transmission
Services, L.P.

c/o US Power Generating Company, LLC,

400 Madison Avenue,

New York, NY 10017

	 	$	25,000,000	 	 	 	2,500,000	 	 	 	386	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Stanley Shuman

c/o Allen & Company

711 5th Avenue

New York, NY 100022

	 	$	3,000,000	 	 	 	300,000	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Jacob Worenklein and Cindy Worenklein, as
tenants by the entirety

610 West End Avenue

New York, NY 10024

	 	$	 2,630,000	 	 	 	263,000	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Jacob Worenklein

610 West End Avenue,

New York, NY 10024

	 	 	—	 	 	 	—	 	 	 	266	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Jeff Hunter 

33 Johnson Place,

Rye, NY 10580

	 	$	300,000	 	 	 	30,000	 	 	 	91	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Mark Sudbey 

1 Cider Mill Road,

Sandy Hook, CT 06482

	 	$	250,000	 	 	 	25,000	 	 	 	70	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Ian Nutt

USPG, 400 Madison Avenue,

New York, NY 10017

	 	$	225,000	 	 	 	22,500	 	 	 	70	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Craig Hart 

241 West 108 Street, Apt. 5,

New York, NY 10025

	 	$	100,000	 	 	 	10,000	 	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Adam Allen 

284 Mott Street, 6H,

New York, NY 10012

	 	$	50,000	 	 	 	5,000	 	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL

	 	$	314,400,000	 	 	 	31,440,000	 	 	 	953